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Madhya Pradesh High Court · body

2016 DIGILAW 215 (MP)

Sunil Kumar Rajput v. State of M. P.

2016-03-10

SHEEL NAGU

body2016
ORDER 1. The present petition under Article 226 of the Constitution of India has been filed seeking following reliefs :- “(i) That the respondents kindly directed to declared passed to the petitioner in the Trade Test Examination also and in alternate may kindly directed to conducted fresh Trade Test (Driving) by constituting a independent committee/board. (1-a) That, the result P-1 regarding declared fail to the petitioner in the trade test of Police Constable Requirement test-2013 kindly quashed. “(ii) That, the respondent kindly further directed issued the appointment order to the petitioner on the post of Constable (Driver) and also granted consequential relief including payment of salary and seniority etc. from the date on which it was granted to the other candidate appeared in the examination along with the petitioner. (iii) That, other relief doing justice including cost be ordered.” 2. The principal grievance of the petitioner is that despite being eligible and fit for being appointed as Constable (Driver) in the police department, in the selection process held in September, 2013 the petitioner has been found unfit on account of having failed in the driving test conducted in terms of Clause 1.16.3 of the terms and conditions of the advertisement Annexure R-1. 3. Learned counsel for the petitioner further submitted that as per said provision of Clause 1.16.3, there should have been videography conducted of the driving test, which was not done purposely to deny the subsequent verification of the genuineness of the test driving. It is further submitted that the composition of the committee constituted by the police headquarter to supervise the selection was illegal inasmuch as the same comprising of DIG Chambal Range, Morena, SDOP, Banmore, district Morena. Deputy S.P., Police Line Gwalior who were not academically qualified to supervise the driving test and had no experience in this regard. Last submission of the counsel is that petitioner could not have failed in the driving test as he possessed valid driving licence of HMV. 4. The State has filed a detailed return submitting that the petitioner after passing physical proficiency test, which was conducted on 10.2.2014 at parade ground of 14th Battalion SAF Gwalior, appeared in the driving test in which he was adjudged as failed. 5. 4. The State has filed a detailed return submitting that the petitioner after passing physical proficiency test, which was conducted on 10.2.2014 at parade ground of 14th Battalion SAF Gwalior, appeared in the driving test in which he was adjudged as failed. 5. In the reply it is further disclosed that mere possession of driving licence does not certify a candidate for being selected on the post in question where the exigency of the job requires driving in difficult and arduous conditions at odd hours, thereby justifying the conduction of driving test. 6. The selection process was concluded sometime in the beginning of 2014 whereafter nearly two years have elapsed. Though the advertisement Annexure-R/1 does not speak about the validity period of the select list but the general principle applicable under service jurisprudence is that no select list can be kept alive for an indefinite period otherwise it would amount to arbitrary exercise of power as violating the mandate of Article 16 of Constitution. In that situation, fresh recruitments will never take place and the candidates in open market who fulfill required eligibility will be denied right to be considered for public employment. On this point it would be useful to refer to the decisions of the apex Court in the cases of Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and others [1994 Supp(2) SCC 591], and Surinder Singh and others v. State of Punjab and another ‘ (1997)8 SCC 488 ]. To arrive at just conclusion, it would be profitable to reproduce below paras 9 and 15 of the above respective referred cases :- “9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.” “15. Waiting list cannot be used as a perennial source of recruitment for filling up the vacancies not advertised. The candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate sleeted against the existing vacancy does not join for some reason and the waiting list is still operative. The candidates included in the waiting list cannot claim appointment on the ground that the vacancies were not worked out properly.” 7. Thus, as noticed above, the validity of the select list in question prepared in March, 2014 in all probability has come to an end. There is no interim order in the present case for either keeping the select list alive or keeping a post vacant for petitioner and therefore by elapse of time, the cause raised in this petition has rendered infructuous. 8. At this stage, learned counsel for the petitioner submits that to the best of his knowledge certain vacancies are still available which is evident from Annexure P-5. 9. Perusal of the document, Annexure P-5 indicates that the same was issued sometime in March, 2014 and even if any vacancy is available the same cannot now be filled up after lapse of two years by operating a select list which has lost its legal sanctity and efficacy. 10. 9. Perusal of the document, Annexure P-5 indicates that the same was issued sometime in March, 2014 and even if any vacancy is available the same cannot now be filled up after lapse of two years by operating a select list which has lost its legal sanctity and efficacy. 10. Further prayer of the petitioner that direction be issued to the recruitment agency/respondents to produce videography of the test driving is also of no avail since the validity of the select list prepared for the recruitment which took place in 2013-14 has lapsed by elapse of time and thus does not exist in the eye of law which cannot now be operated especially in the absence of any interim order to protect the petitioner against lapse of such select list. 11. In view of above, the petition is dismissed having rendered infructuous.